A Designation of Health Care Surrogate, also sometimes known as a Durable Power of Attorney for Healthcare, is typically prepared as a part of a person’s overall foundational estate plan. It is a written statement indentifying the person who has authority to make healthcare decisions for the individual (the “principal”) or receive health information on the principal’s behalf in the event he or she is unable to do so. October 1, 2015 brought legislative changes to the laws controlling the Designation of Health Care Surrogate.
Prior to October 1, 2015, a Designation of Health Care Surrogate would not become effective until the principal lacked the ability to make everyday healthcare decisions on their own behalf. Now, the designated surrogate may make health care decisions on the principal’s behalf even if no determination of incapacity has been made. Further, the surrogate can have immediate access to medical records and information that would otherwise be confidential under federal HIPPA laws. Under the new statute, the Designation can be drafted so that the healthcare surrogate has the power to act immediately upon signing and avoid waiting for a determination of incapacity of the principal. However, if the principal has mental capacity, his or her decisions would be controlling and would not require any consent of the surrogate. In addition, the Designation can be revoked at any time.
Next, under the new law, parents are able to name a health care surrogate for a minor child in the event the parents (or guardian) are unable to act. In such case, whoever is taking care of the minor child can be authorized to make medical decisions without the delay of locating a parent who is unavailable. This designation is made by an executed document and can be amended or revoked at any time.
It is important to understand that a Designation of Health Care Surrogate is separate and distinct from a Living Will which is a written statement reflecting a person’s desire not to receive artificial life prolonging procedures if the principal is terminally ill or in a persistent vegetative state with no reasonable probability of recovery. The individual chosen to be the healthcare surrogate would normally also be named in the Living Will to ensure that the wishes of the principal are carried out.